Cauthron v. Murphy

• Decision Date: 06 June 1910
• Citation: 130 S.W. 671
• Parties: CAUTHRON et al. v. MURPHY et al.
• Court: Texas Court of Appeals

130 S.W. 671

CAUTHRON et al. v. MURPHY et al.

Court of Civil Appeals of Texas.

June 6, 1910.

Rehearing Denied June 25, 1910.

Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.

Action by R. S. Cauthron and others against R. L. Murphy and others to contest a stock law election. From a judgment dismissing the cause, plaintiffs appeal. Affirmed.

T. R. Yantis, for appellants. Liveley & Stanford, for appellees.

BOOKHOUT J.

This was a suit brought by appellants to contest a stock law election held in a subdivision of Van Zandt county. The trial court sustained the appellees' plea to the jurisdiction of the court on the ground that appellees had not been served with a notice of appellants' grounds of contest, and rendered judgment dismissing the cause. To this action of the court the appellants excepted and in open court gave notice of appeal. The appeal was duly perfected.

The first assignment of error reads as follows: "The court erred in finding that the defendants had not been given notice of plaintiffs' grounds of contest of said election, and dismissing this suit. The notice served on the defendants showing that plaintiffs contested said election on the ground that said election was not held as required by law, that the lines were not run as they should have been, but were so run as to include parties in favor of said stock law, and so as not to include parties opposed to said stock law. That parties not qualified to vote in said election were permitted to vote in said election, that other parties who were qualified voters at said election were not permitted to vote, and if they had been permitted to vote, they would have voted against the stock law, and the result of said election would have gone against the stock law."

Article 5, § 8 of the Constitution, as amended in 1891, confers jurisdiction upon the district courts to try contested elections. This clause of the Constitution is not self-executing. It is held that a contested election is not a civil suit, and therefore cannot be tried by the proceedings in such cases. Odell v. Wharton, 87 Tex. 173, 27 S. W. 123. Title 36, c. 7, Sayles' Ann. Civ. St. 1897, prescribes rules for the contesting of the election of certain district and county officers. Article 1797 provides that "contested elections for other purposes than the election of officers shall be tried by the district court in the county where the election was held, or either of them, if there is more than one such court." Article 1798 provides: "Any person intending to contest the election of any one holding a certificate of election as a member of the Legislature...